Citation Nr: 0306159
Decision Date: 03/31/03 Archive Date: 04/08/03
DOCKET NO. 96-26 149 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for an acquired
psychiatric disorder, to include a psychosis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Leonard J. Vecchiollo
INTRODUCTION
The veteran had active military service from September 1960
to August 1962.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 1993 rating decision in
which the RO found that new and material evidence had not
been submitted to reopen a claim for service connection for a
psychiatric disorder to include a psychosis. The veteran
timely perfected an appeal to the Board.
The Board remanded the case in August 2001 for further
development and adjudication. The additional development was
accomplished to the extent possible, and the claim was
readjudicated; however, as RO continued the denial of the
claim, it has been returned to the Board for further
appellate consideration.
FINDINGS OF FACT
1. In January 1968, the RO denied the veteran's claim for
service connection for a neuropsychiatric condition; although
the RO sent him a letter that same month notifying him of the
decision and apprising him of his procedural and appellate
rights, he did not initiate an appeal with respect to the
denial.
2. The additional medical and other evidence that has been
submitted or otherwise obtained since the RO's January 1968
decision is either duplicative of the evidence that was on
file when that decision was issued, or does not indicate the
veteran has an acquired psychiatric disorder as a result of
his service in the military.
CONCLUSIONS OF LAW
1. The RO's January 1968 decision denying the claim for
service connection for a neuropsychiatric disorder is final.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302,
20.1103 (2002).
2. New and material evidence has not been submitted since
that decision to reopen this claim. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset, the Board notes that, during the pendancy of
this appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
and 5107 (West Supp. 2002). This liberalizing law is
applicable to this appeal. See Karnas v. Derwinski, 1 Vet.
App. 308, 312-13 (1991). To implement the provisions of the
law, the VA promulgated regulations published at 66 Fed. Reg.
45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2002)). The VCAA and its
implementing regulations essentially eliminate the concept of
the well-grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R.
§ 3.102. They also include, upon the submission of a
substantially complete application for benefits, an enhanced
duty on the part of the VA to notify a claimant of the
information and evidence needed to substantiate a claim
(38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)), as well as the
duty to notify the claimant what evidence will be obtained by
whom (38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(b)). In
addition, they define the obligation of the VA with respect
to its duty to assist a claimant in obtaining evidence.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
For the reasons explained in more detail below, the Board
finds that the passage of the VCAA and implementing
regulations does not prevent the Board from rendering a
decision on the claim on appeal at this time, as all
notification and development action needed to render a fair
decision on that claim has been accomplished.
Service connection may be granted for a disability resulting
from disease or injury incurred or aggravated during a
veteran's active service. 38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303. Certain chronic disabilities, to include psychoses,
are presumed incurred in service if manifested to a
compensable degree within a prescribed period post-service,
one year for a psychosis. 38 U.S.C.A. §§ 38 U.S.C.A. § 1101,
1112, 1113; 38 C.F.R. § 3.307. 3.309.
The RO initially denied the veteran's claim for service
connection for a psychiatric condition in January 1968 on the
basis that there was no evidence of any psychiatric condition
in service or evidence of a psychosis within one year of
separation from service. The RO considered the veteran's
service medical records which were negative for any
complaints of or treatment for a neuropsychiatric condition.
Medical records from Harlem Valley State Hospital noted that
the veteran was hospitalized for paranoid schizophrenia from
July 20, to October 10, 1967, and then transferred to a VA
facility. It was noted that the veteran was a poor student,
was in a special class and was always considered mildly
mentally deficient. The RO also considered a letter from the
veteran's mother noting that the veteran was not the same man
when he was discharged from service.
The RO sent the veteran a letter later in January 1968
notifying him of the decision and apprising him of his
procedural and appellate rights. The veteran did not submit
a notice of disagreement within one year of this notice.
Consequently, that decision became final and binding on him
based on the evidence then of record. See 38 U.S.C.A. §
7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The matter
currently on appeal stems from the RO's denial of a March
1992 attempt to reopen the claim.
Under pertinent law and VA regulation, VA may reopen and
review a claim that has been previously denied if new and
material evidence is submitted by or on behalf of the
veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). See also
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
Title 38 Code of Federal Regulations, Section 3.156(a)
provides that "new and material evidence" is evidence not
previously submitted which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. [Parenthetically, the Board
notes the regulations implementing the VCAA include a
revision of 38 C.F.R. § 3.156. However, that revision
applies only to claims filed on or after August 29, 2001.
See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as
amended at 38 C.F.R. § 3.156(a) (2002). Given the March 1992
date of the claim culminating in the instant appeal, the
Board will apply the version of 38 C.F.R. § 3.156(a) in
effect prior to August 29, 2001; that version appears in the
2001 edition of Title 38 of the Code of Federal Regulations].
In determining whether new and material evidence has been
presented, VA must initially decide whether evidence
submitted since the prior final denial is, in fact, new. As
indicated by the regulation cited above, and by judicial case
law, "new" evidence is that which was not of record at the
time of the last final disallowance (on any basis) of the
claim, and is not "merely cumulative" of other evidence
that was then of record. This analysis is undertaken by
comparing newly received evidence with the evidence
previously of record. After evidence is determined to be
new, the next question is whether it is material.
The provisions of 38 U.S.C.A. § 5108 require a review of all
evidence submitted by a claimant since the last final denial
on any basis to determine whether a claim must be reopened.
See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the
last final denial of the claim was the RO's January 1968
denial of service connection. Furthermore, for purposes of
the "new and material" analysis, the credibility of the
evidence is presumed. Justus v. Principi, 3 Vet. App. 510,
512-513 (1992).
The evidence that has been associated with the record since
the RO's January 1998 decision consists of: a) several
written statements from the veteran; b) statements from his
representative; c) a summary of hospitalization at Harlem
Valley State Hospital noting that the veteran was
hospitalized for paranoid schizophrenia from July 20, to
October 10, 1967; d) VA hospital Summary from October 11,
1967, to January 2, 1968; e) Social Security Administration
(SSA) records noting the veteran was adjudicated to have been
totally disabled due to schizophrenia on July 31, 1981; and
f) VA mental health records from the 1990's.
The veteran's and his representative's statements that the
veteran he has had schizophrenia since service are not new
because they already were considered by the RO prior to
denying the claim in January 1968. Even if such assertions
were new, as laypersons without the appropriate medical
training or expertise, neither the veteran nor his
representative is competent to render a probative
(persuasive) opinon on a medical matter, such as whether the
veteran's current schizophrenia is causally related to his
service in the military. See Bostain v. West, 11 Vet. App.
124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App.
492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186
(1997) (a layman is generally not capable of opining on
matters requiring medical knowledge). Hence, where, as here,
resolution of the issue turns on a medical matter,
unsupported lay statements, even if new, cannot serve as a
predicate to reopen a previously disallowed claim. See Moray
v. Brown, 5 Vet. App. 211, 214 (1993); Pollard v. Brown, 6
Vet. App. 11 (1993).
The summaries of private and VA hospitalization from the
1960's are new, in the sense that these particular documents
were previously of record, but they merely reiterate the
findings of the hospital records considered by the RO in its
January 1968 decision. They contain essentially the same
medical findings and diagnoses as those in prior records,
which note a diagnosis of schizophrenic reaction in 1987,
almost 5 years after separation from service. Such evidence,
although new, is merely cumulative of other evidence
previously of record. See Reid v. Derwinski, 2 Vet. App. 312
(1992).
The SSA records that contain medical records noting diagnoses
of schizophrenia in the early 1980's and the VA medical
records noting the same diagnosis in the 1990's are obviously
new but they are not material, inasmuch as they include no
medical opinion that the veteran had schizophrenia in service
or within one year thereafter, or otherwise establish a
medical relationship between a currently diagnosed
psychiatric disability and service.
Thus, as none of the medical and other evidence submitted
since the RO's January 1968 decision competently establishes
that the veteran had schizophrenia in service or within one
year thereafter, or otherwise competently demonstrates a
nexus between a current, acquired psychiatric disorder and
service, the Board finds that new and material evidence
pertinent to the claim for service connection has not been
presented, and the claim, therefore, cannot be reopened. See
Hickson v. West, 11 Vet. App. 374, 378 (1998); Spalding v.
Brown, 10 Vet. App. 6, 11 (1996).
As a final note, the Board finds that specific discussion of
the VCAA and its applicability to the issue currently under
consideration is warranted. While the Board has considered
the VCAA, it expressly provides that nothing in the Act
"shall be construed to require [VA] to reopen a claim that
has been disallowed except when new and material evidence is
presented or secured, as described in section 5108 of this
title." Pub. L. No. 106-475, § 3(a), 114 Stat. 2096
(codified at 38 U.S.C. § 5103A(f) (West 2002)). Because the
veteran has not presented new and material evidence to reopen
his claim for service connection for a cervical spine
disability, it does not appear that the duty to assist
provisions of the Act are applicable in connection with the
claim. Moreover, as indicated above, because the petition to
reopen was filed prior to August 29, 2001, any duties set
forth in the revised version of 38 C.F.R. § 3.156(a),
promulgated pursuant to the Act, also are not applicable in
this appeal.
In any event, as indicated above, the Board has determined
that that all notification and development action needed to
render a fair decision on the issue on appeal has been
accomplished.
In this regard, the Board notes that, via a February 1995
Statement of the Case, Moreover, a Supplemental Statement of
the Case, dated in February 2003, further apprised him of the
reasons and bases for denying his petition to reopen his
claim and of the applicable regulations. Clearly then, he
has been given sufficient notice of the information and
evidence needed to reopen his claim, and afforded opportunity
to present such information and evidence.
The Board notes that the RO sent the veteran a letter in
December 2002, reiterating the legal requirements for
establishing service connection, as well as notifying him of
the evidence needed to prevail on his claim, and that VA
would assist him in obtaining such evidence if sufficient
information and evidence was provided. Specifically, the RO
requested that the veteran execute authorization for release
of medical records form (VA Form 21-4142) relative to his
private medical treatment, as the veteran had stated that he
was hospitalized for schizophrenia at Hudson River
Psychiatric Center (previously named Harlem Valley State
Hospital) in 1965. Previous attempts to obtain these
putative records did not yield additional records. In
addition, pertaining to one request, hospital personnel
requested that the veteran execute a current authorization
for release of medical records form. The veteran did not
respond to this request. Therefore, the veteran is not
entitled to any further assistance in obtaining these
putative records Through the document referred to above,
the Board finds that the statutory and regulatory requirement
that VA notify a claimant what evidence, if any, will be
obtained by the claimant and which evidence will be obtained
by VA has been met. See Quartuccio v. Principi, 16 Vet. App.
183 (2002)(addressing the duties imposed by 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159 (2002)).
Finally, the Board notes that all necessary development has
been accomplished. The veteran has been afforded various
opportunities to present evidence and argument in support of
the petition to reopen. Significantly, the Board is aware of
no circumstances in this matter that would put VA on notice
of the existence of any additional, currently obtainable,
relevant evidence that would provide a basis to reopen the
claim on appeal. See McKnight v. Gober, 131 F.3d 1483, 1485
(Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78
(1995).
As the veteran has not fulfilled his threshold burden of
submitting new and material evidence to reopen the finally
disallowed claim, the benefit-of-the-doubt doctrine is not
applicable. See Annoni v. Brown, 5 Vet. App. 463, 467
(1993).
ORDER
As new and material evidence has not been submitted to open
the claim for service connection for an acquired psychiatric
disorder, to include a psychosis, the petition to reopen the
claim is denied.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.